Outbreak of peace in water-quality fight

Regulators, enviros, industry working together in SD County

William Svec, a biologist with the city of San Diego Transportation and Stormwater Department, left, records information while intern Sean Mulderig, right, takes water samples from a storm drain system channeled creek along Murphy Canyon Road. / photo by Howard Lipin * U-T

William Svec, a biologist with the city of San Diego Transportation and Stormwater Department, left, records information while intern Sean Mulderig, right, takes water samples from a storm drain system channeled creek along Murphy Canyon Road. / photo by Howard Lipin * U-T

Here’s the legal problem: Last year, the board imposed a long list of numeric targets for levels of bacteria, metals and chemicals in the water running into streams during dry weather or storms. There was no phase-in period. Every city in San Diego County was instantly in violation.

But last month, the board essentially waived its rigid numeric targets for fertilizers in Oceanside. City officials will get two years or more to change public behavior, install retention basins or otherwise experiment with ways to reduce algae blooms.

To you and me, letting someone figure out the best way to do something might seem unremarkable.

But it amounts to radical innovation in the regulatory community, where officials typically issue edicts and people choose only whether to follow them or sue.

This keeps a promise made last year by Dave Gibson, the agency’s executive director. “We’re trying to achieve the water-quality goals in a collaborative and cost-effective manner,” he said Tuesday.

The agency has shown similar patience with the Tijuana River watershed. So why here, and now?

Insiders credit this outbreak of reason to local board members, and particularly to their director.

Gibson, a scientist by training, has been unusually collaborative and eager for subjects of regulation to work together.

Whether Gibson is the chicken or the egg is probably unknowable, yet he’s fostered a truce among people who are usually in court by this point.

“We want to be part of the solution and work with them,” said Matt O’Malley, a lawyer with San Diego Coastkeeper, a powerful environmental group. “For us to be screaming from the mountaintops, that this hasn’t worked in a year; that’s not reasonable.”

In an effort begun by O’Malley’s predecessor, Jill Witkowski, Coastkeeper has worked with its former nemesis, the Building Industry Association of San Diego County, to find realistic solutions and help cities navigate the rules.

Both groups share an interest in a successful outcome, said Mike McSweeney, the BIA’s policy adviser on water quality. “Relationships are important. If everybody goes back to their silos, progress stops,” he said.

Besides, the builders spent $1.5 million suing over previous regulations and ended up with nothing.

This brings me back to my theory.

When the state agency pushed through impossible numerical limits for pollution, it created the legal equivalent of the Cold War doctrine of mutually assured destruction.

As long as the U.S. and former Soviet Union kept enough nuclear weapons to destroy each other, they were less likely to do so.

In San Diego’s case, these new rules can’t possibly be deployed as written. And, instead of focusing merely on builders and industry, they threaten local governments with potentially infinite fines.

All sides fear an adverse ruling by the U.S. Supreme Court, which could either blow up the regulatory regime or trigger a fiscal meltdown.

Of course, the rules are still out there. Some people would rather have the fighting resume.

And, as cities put forward policies for 10 other watersheds, the board’s patience will be tested.

There is “a big hammer hanging over the process if this doesn’t work,” board member Gary Strawn told Oceanside officials.

In the meantime, San Diego County’s regulatory apocalypse appears to have been postponed.